By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to those additional terms and conditions, which are incorporated into these Terms of Service by this reference.
These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information, and other materials or services, registered or otherwise.
This Commercial Accounts Receivable Factoring and Security Agreement (the “Agreement”) is made as of the date of using the Services in any manner by and between you the user (“Seller”) and Fluid Financial, Inc. (“Purchaser”).
(a) This Agreement is fulfilled and the services described herein are effected by means of Seller’s accessing and initiating transactions at Purchaser’s web site and internet Portal.
(b) Seller may offer sales of commercial accounts receivable (“Accounts”) to Purchaser by registering on the Portal. Seller agrees that Seller is responsible for maintaining the confidentiality of the combination of Seller’s Login ID and password (together, “Registration Information”) which allow Seller to access the Portal. If Seller believes that Seller’s Registration Information or a device that Seller uses to access the Portal has been lost or stolen, that someone else is using Seller’s Registration Information without Seller’s permission, or that an unauthorized transaction has occurred, Seller agrees to notify Purchaser IMMEDIATELY at [email protected].
(c) Seller agrees to provide accurate profile information through the Portal, as requested, as a condition of using the Portal, and to promptly update all requested Profile Information from time to time whenever information previously provided is no longer accurate.
(d) The current terms and provisions of this Agreement shall apply to any transaction effected while this Agreement is in effect. Purchaser may modify this Agreement from time to time by posting such changes on the Portal and by sending an email to Seller informing Seller of any changes in the Agreement prior to posting those changes. The Agreement posted on the Portal will always indicate the date it was last revised. If Seller initiates a transaction through the Portal after those changes are posted, Seller shall be deemed to have accepted the new terms of the Agreement and to have agreed to be bound by such changes.
(a) Seller may log onto the Portal from time to time and offer to sell Accounts to Purchaser. This Agreement shall apply to each Account accepted by Purchaser until such time as this Agreement is terminated. Accounts purchased under this Agreement are referred to herein as “Purchased Accounts.” Upon receipt of such an offer from Seller, Purchaser shall review the Account offered to determine whether Purchaser wishes to purchase it; research and consider the acceptability of the person who owes the amount due under the Account to Seller (the “Obligor”); and notify Seller whether it wishes to purchase the Account offered.
(b) Seller shall provide with each Account offered to Purchaser such documentation supporting and evidencing the Account as Purchaser shall from time to time request.
(c) Purchaser shall pay Seller the purchase price for any Purchased Account as set forth on the Portal, less any amounts due to Purchaser from Seller, within two (2) business days of Seller’s acceptance of an Account from Purchaser, whereupon the Account shall be deemed purchased hereunder. The purchase price shall be calculated by subtracting a discount from the amount of the Account. The discount applicable to the purchase price will be provided to Seller on the Portal at the time the Account is Purchased. The discount may vary from time to time or based on the nature of the Account purchased. Payment will be made directly from Purchaser to Seller as set forth in the instructions from Purchaser on the Portal.
(d) If Seller so agrees through the Portal, Purchaser may initiate Automated Clearing House (“ACH”) or direct electronic funds transfers (“EFT’s”) to transfer payment for Purchased Accounts to Seller’s designated bank account(s), as set forth in section 2.(c), above.
(a) As collateral securing this Agreement, Seller hereby grants to Purchaser a continuing first priority security interest in and to the Purchased Accounts. “Collateral” shall include any collateral now or hereafter described in any form UCC1 filed against Seller naming Purchaser as the secured party, and any proceeds thereof, and all of Seller’s right, title, and interest in and to the Purchased Accounts.
(b) Notwithstanding the creation of the above security interest, the relationship of the parties shall be that of purchaser and seller of accounts, and not that of lender and borrower.
(c) Seller, or a principal of Seller, may provide a personal guaranty of performance of this Agreement. If such a personal guaranty is provided to Purchaser, the terms of such personal guaranty are incorporated into this Agreement by this reference as though fully set forth herein, and a breach of such personal guaranty shall constitute a breach of this Agreement.
(a) Seller hereby irrevocably authorizes Purchaser and any designee of Purchaser, at Seller’s sole expense, to exercise at any times in Purchaser’s or such designee’s discretion all or any of the following powers until all amounts due hereunder have been paid in full:
(i) Receive, take, endorse, assign, deliver, accept, and deposit, in the name of Purchaser or Seller, any and all cash, checks, commercial paper, drafts, remittances, and other instruments and documents relating to the Collateral or the proceeds thereof;
(ii) Take or bring, in the name of Purchaser or Seller, all steps, actions, suits, or proceedings deemed by Purchaser necessary or desirable to effect collection of or other realization upon the accounts and other Collateral;
(iii) After an Event of Default change the address for delivery of Seller’s mail and to receive and open mail addressed to Seller from the Obligor or from any other person who, to Purchaser’s reasonable knowledge, has a payment obligation to Seller;
(iv) Extend the time of payment of, compromise or settle for cash, credit, return of merchandise, and upon any terms or conditions, any and all Accounts or other Collateral which includes a monetary obligation and discharge or release any Obligor (including filing of any public record releasing any lien granted to Seller by such Obligor), without affecting any of the of Seller’s obligations hereunder;
(v) Execute in the name of Seller and file as to Seller and/or Obligor in favor of Purchaser UCC1 financing statements or amendments with respect to the Collateral;
(vi) Pay any sums necessary to discharge any lien or encumbrance which is senior to Purchaser's security interest in the Collateral, which sums shall be included as amounts due hereunder; and
(vii) At any time, irrespective of whether an Event of Default has occurred, without notice to or the assent of Seller, notify any Obligor with respect to any Account, that the underlying Account has been assigned to Purchaser by Seller and that payment thereof is to be made to the order of and directly and solely to Purchaser.
(viii) At any time, communicate directly with any Obligor debtors to verify the amount and validity of any Account created by Seller, the financial standing of the Obligor, and and the likelihood that Obligor will pay the amount due under the Account Purchased.
(b) Seller hereby releases and exculpates Purchaser, its officers, employees, and designees, from any liability arising from any acts under this Agreement or in furtherance thereof whether of omission or commission, and whether based upon any error of judgment or mistake of law or fact, except for willful misconduct. In no event will Purchaser have any liability to Seller for lost profits or other special or consequential damages. Without limiting the generality of the foregoing, Seller releases Purchaser from any claims which Seller may now or hereafter have arising out of Purchaser’s endorsement and deposit of checks issued by Seller's customers stating that they were in full payment of an account, but issued for less than the full amount which may have been owed on the account.
(c) Seller authorizes Purchaser to accept, endorse, and deposit on behalf of Seller any checks tendered by an account debtor "in full payment" of its obligation to Seller. Seller shall not assert against Purchaser any claim arising therefrom, irrespective of whether such action by Purchaser effects an accord and satisfaction of seller's claims, under §3311 of the Uniform Commercial Code, or otherwise.
(d) Purchaser is hereby authorized by Seller to initiate electronic debit or credit entries through the ACH system to the deposit account designated by Seller. Seller may only terminate this authorization by giving Purchaser written notice in accordance with the rules of the ACH system.
(a) Seller shall not, without the prior written consent of Purchaser in each instance:
(i) grant any extension of time for payment of any Account;
(ii) compromise or settle any Account for less than the full amount thereof;
(iii) release in whole or in part any Account debtor or other person liable for the payment of any of the accounts;
(iv) grant any credits, discounts, allowances, deductions, return authorizations, or the like with respect to any Account;
(v) create, incur, assume, or permit to exist any lien upon or with respect to any Account now owned or hereafter acquired by Seller;
(b) Seller shall deliver to Purchaser on the next banking day following the date of receipt by Seller of the amount of any payment on a Purchased Account.
(c) Seller shall notify Purchaser promptly of and, if requested by Purchaser, will settle all disputes concerning any Purchased Account, at Seller’s sole cost and expense. However, Seller shall not, without Purchaser’s prior written consent, compromise or adjust any Purchased Account or grant any additional discounts, allowances, or credits thereon. Purchaser may, but is not required to, attempt to settle, compromise, or litigate (collectively, “Resolve”) the dispute upon such terms as Purchaser in its sole discretion deems advisable, for Seller’s account and risk and at Seller’s sole expense. Upon the occurrence of an Event of Default, Purchaser may Resolve such issues with respect to any Account of Seller.
(d) Seller shall execute and deliver to Purchaser such documents and instruments, including, without limitation, Uniform Commercial Code financing statements, as Purchaser may request from time to time in order to (1) evidence and perfect its security interest in any collateral securing the amounts due from Seller to Purchaser hereunder, and (2) to confirm that all taxes required in connection with any Account transaction have been paid by Seller or Obligor, as appropriate.
(e) If Seller has not forwarded payment in full for any Purchased Account to Seller by the Date for Repayment of Purchased Accounts set forth in the Schedule of Accounts, Seller shall repurchase all such outstanding Purchased Accounts at the face amount of the outstanding balance of such Purchased Account(s) including interest on such outstanding obligations at the legal rate.
(a) Seller is fully authorized to enter into this Agreement and to perform hereunder; this Agreement constitutes its legal, valid, and binding obligation; and Seller is solvent and in good standing in the State of its organization. Seller shall notify Purchaser at [email protected] of any proposed change in Seller's name, legal entity, trade name, and office location or ownership structure.
(b) Each Purchased Account, at the time each is submitted for purchase, is and will remain:
(i) a bona fide existing obligation created by the sale and delivery of goods or the rendition of services in the ordinary course of Seller’s business, unconditionally owed by Seller;
(ii) the amount of each Account is due and owing to Seller and represents an accurate statement of a bona fide sale, delivery and acceptance of goods or performance of service by Seller to or for an Obligor;
(iii) and will be paid to Purchaser without defenses, disputes, offsets, counterclaims, or rights of return or cancellation.
(i) has not received notice of actual or imminent bankruptcy, insolvency, or material impairment of the financial condition of any applicable account debtor regarding Purchased Accounts;
(ii) shall notify Purchaser, in writing, immediately after obtaining knowledge from any source of the filing, by any means, of any lien, claim, or levy, against any property of Seller or Obligor;
(iii) shall not interfere with Purchaser's rights under this Agreement;
(iv) has not and will not transfer, assigns or pledge any Account and shall not grant a security interest therein to any party other than Purchaser and that there are no financing statements now on file in any public office governing any property of Seller of any kind, real or personal, in which Seller is named in or has signed as the debtor, except the financing statement or statements filed or to be filed in respect to this Agreement or those statements now on file that have been disclosed in writing by Seller to Purchaser. Seller will not execute nor permit the recording of any financing statement in favor of any other person or entity, except Purchaser, during the term of this Agreement.
(d) Seller shall accept no returns and shall grant no allowances or credit to any Obligor without notice to and the prior written approval of Purchaser. Seller shall provide to Purchaser for each Purchased Account and each Obligor, such information as requested by Purchaser through the Portal itemizing all such returns and allowances made previous week with respect to such Accounts and payment to Purchaser for the amount thereof.
(e) All information provided by Seller on Purchaser’s Portal in connection with this Agreement is true and correct at the time that this Agreement is executed. There is no fact which Seller has not disclosed to Purchaser in writing which could materially adversely affect the Collateral, business or financial condition of Seller or Obligor, or any of the Accounts, or which is necessary to disclose in order to keep the foregoing representations and warranties from being misleading.
(a) Seller understands and agrees that the parties are entering into this Agreement electronically; that this Agreement is to be fulfilled electronically; and that the essence of this Agreement is transfer of information by electronic means (“Communications”). Communications may be provided hereunder by either party accessing the Portal or by other electronic means as authorized on the Portal. The categories of Communications that may be provided by electronic means include:
(i) this Agreement and any amendments, modifications, or supplements;
(ii) records of any payment and other transactions effected through the Portal, including payment histories and transaction confirmations;
(iii) notices provided in connection with the sale or collection of Accounts with respect to claims of error or unauthorized use of the Sites or Services; and
(iv) any other communication related to the Portal or the transactions made under this Agreement. Seller’s electronic access to the Portal confirms Seller’s ability and consent to receive Communications. Although Purchaser reserves the right to provide Communications in paper format at any time, Seller agrees that Purchaser is under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” Seller should print a paper copy of these Terms of Service and any Communication that are important to Seller and retain the Seller’s for your records. If Seller does not wish to receive this Agreement or Communications electronically, Purchaser declines to enter into this Agreement with Seller.
(b) If Seller wishes to withdraw consent to have Communications provided electronically, Seller must terminate this Agreement by contacting [email protected], and/or must cease using the Portal. There are no fees for terminating this Agreement. Any withdrawal of Seller’s consent to receive electronic Communications will be effective only after Seller has a reasonable period of time to process such instruction. Any outstanding payment obligations at that time will remain in effect.
(c) Purchaser reserves the right, in its sole discretion, to terminate this Agreement as to any Seller. In such event, Purchaser will so notify Seller, and this Agreement shall remain into effect as to outstanding transactions and as otherwise provided herein.
(d) Purchaser shall maintain on its Portal at all times information concerning the status of all offered Accounts and all Purchased Accounts. Seller may at any time access that information via the Portal. The information on the Portal shall be deemed conclusively accurate and binding on Seller unless Seller notifies Purchaser through the Portal, within a reasonable time, that Seller disagrees with such information. Seller agrees to review such information on the Portal and notify Purchaser of any disagreements on a timely basis, but in any event within 30 days of the posting of such information.
(a) Each of the following events will constitute an Event of Default hereunder:
(i) Seller defaults in any obligation to Obligor or any third party that requires such person to make payments due hereunder, or any warranty or representation contained herein proves to be materially false;
(ii) Seller, Obligor, or any guarantor of this Agreement becomes subject to any debtorrelief proceedings;
(iii) Seller, Obligor or any guarantor fails to perform or observe any obligations to make payment to Purchaser or shall notify Purchaser of its intention to rescind, modify, terminate, or revoke any payment obligation under or guaranty of this Agreement, or any such payment obligation guaranty shall cease to be in full force and effect for any reason whatever; or
(iv) the receipt by Seller of any payment on any Purchased Account which is not delivered to Purchaser on the next business day following the date of receipt by Seller.
(b) Upon the occurrence of any Event of Default, in addition to any rights Purchaser has under this Agreement or applicable law, Purchaser may immediately terminate this Agreement, at which time all obligations hereunder shall become immediately become due and payable without notice.
(c) SELLER WAIVES ANY REQUIREMENT THAT PURCHASER INFORM SELLER BY AFFIRMATIVE ACT OR OTHERWISE OF ANY ACCELERATION OF SELLER'S OBLIGATIONS HEREUNDER. FURTHER, PURCHASER’S FAILURE TO CHARGE OR ACCRUE FEES AS PERMITTED HEREUNDER SHALL NOT BE DEEMED A WAIVER BY PURCHASER OF ITS CLAIM THERETO.
(a) No Waiver: No failure to exercise and no delay in exercising any right, power, or remedy hereunder shall impair any right, power, or remedy whichPurchaser may have, nor shall any such delay be construed to be a waiver of any of such rights, powers, or remedies, or any acquiescence in any breach or default hereunder; nor shall any waiver by Purchaser of any breach or default by Seller hereunder be deemed a waiver of any default or breach subsequently occurring. All rights and remedies granted to Purchaser hereunder shall remain in full force and effect notwithstanding any single or partial exercise of, or any discontinuance of action begun to enforce, any such right or remedy. The rights and remedies specified herein are cumulative and not exclusive of each other or of any rights or remedies that Purchaser would otherwise have. Any waiver, permit, consent, or approval by Purchaser of any breach or default hereunder must be in writing and shall be effective only to the extent set forth in such writing and only as to that specific instance.
(b) Duration; Amendment: This Agreement remains effective until terminated as herein provided. Unless sooner demanded, all obligations of either party to the other will become immediately due and payable upon any termination of this Agreement. Except as provided in Section 1.(d), above, neither this Agreement nor any provisions hereof may be changed, waived, discharged, or terminated, nor may any consent to the departure from the terms hereof be given, orally (even if supported by new consideration), but only by an instrument in writing signed by all parties to this Agreement. Any waiver or consent so given shall be effective only in the specific instance and for the specific purpose for which given.
(c) Survival: All representations, warranties, and agreements herein contained shall be effective so long as any portion of this Agreement remains executory.
(d) No Lien Termination Without Release: In recognition of the Purchaser's right to have its attorneys’ fees and other expenses incurred in connection with this Agreement secured by the Collateral, notwithstanding payment in full of all amounts due hereunder by Seller, Purchaser shall not be required to record any terminations or satisfactions of any of Purchaser’s liens on the Collateral unless and until Seller has executed and delivered to Purchaser a general release in a form reasonably satisfactory to Purchaser. Seller understands that this provision constitutes a waiver of its rights under §95 13 of the UCC.
(e) Conflict: Unless otherwise expressly stated in any other agreement between Purchaser and Seller, or any information presented on the Portal, if a conflict exists between the provisions of this Agreement and the provisions of such other agreement or information, the provisions of this Agreement shall control.
(f) Severability: In the event any one or more of the provisions contained in this Agreement is held to be invalid, illegal, or unenforceable in any respect, then such provision shall be ineffective only to the extent of such prohibition or invalidity, and the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
(g) Relationship of Parties: The relationship of the parties hereto shall be that of seller and purchaser of accounts, and neither party is or shall be deemed a fiduciary of or to the other. Seller acknowledges that there is not now, and that it will not seek or attempt to establish, any fiduciary relationship between Purchaser and Seller, and Seller waives any right to assert, now or in the future, the existence or creation of any fiduciary relationship between Purchaser and Seller in any action or proceeding (whether by way of claim, counterclaim, crossclaim or otherwise) between them.
(h) Entire Agreement: This Agreement and any addenda supersedes all prior or contemporaneous agreements and understandings between said parties, verbal or written, express or implied, relating to the subject matter hereof. No promises of any kind have been made by Purchaser or any third party to induce Seller to execute this Agreement. No course of dealing, course of performance, or trade usage, and no parole evidence of any nature, shall be used to supplement or modify any terms of this Agreement.
(i) Situs of Agreement; Choice of Law: Purchaser is located in and conducting business in the State of California. By entering into this Agreement, Seller understands and agrees that all of Purchaser’s activities under this Agreement are conducted in California, and that Seller has constructively entered California to do business with Purchaser under this Agreement. This Agreement and all transactions contemplated hereunder and/or evidenced hereby shall be governed by, construed under, and enforced in accordance with the internal laws of the State of California.
(j) Notice: All notices required to be given to any either Seller or Purchaser shall be deemed given upon the transmittal of such notice via the Portal. Notices hereunder may also be be sent to the addresses listed on the Schedule of Accounts, or to such other addresses as each such party may hereafter indicate via the Portal.
(k) Execution; Counterparts: This Agreement may be executed by electronic signature at the Portal, and may be downloaded by either party. Any such download shall constitute an original, with the same effect as if all signatures were upon the same instrument.
Last updated: June 20, 2020